Property rights at the water’s edge Does the “high water mark” still mean what it used to in Indiana?

The Indiana Court of Appeals late last year pulled off a neat trick: a property rights ruling that both sides disagreed with. The Indiana Supreme Court, with good reason, has agreed to hear the case, and the outcome could determine how much access the public has to the beaches of Lake Michigan and other bodies of water.

In dispute are how far inland the state’s ownership extends beyond the lake’s actual water; how close to the water an individual can own property; and who possesses the land in between that’s sometimes covered by water.

The original plaintiffs in the case, Don and Bobbie Gunderson of Long Beach, a wealthy suburb of Michigan City, Ind., contend that their lakeside land extends to the water’s edge, regardless of where the edge is at any given time. But in December, the appeals court unanimously affirmed the long-standing tradition that the state’s interest extends to the “ordinary high water mark.” Anything above that can be claimed by the property owner.

But the court also ruled, in a first-of-its-kind decision, that the boundary of waterfront properties is the lake’s ordinary low water mark and that possession of the beach in between is shared by property owners and the state. That’s a formula certain to generate confusion and further contention.

Looking to precedent is of little use in this case. The state notes that Indiana’s exclusive title to the land up to the high water mark was established at statehood in 1816, and it cannot simply be given away through a court ruling. But the Gundersons have cited precedent dating back to the 1787 Northwest Ordinance to make their case that the government’s interest is limited to navigable waters and does not include shorelines, which they claim may be privately owned.

Regular readers of this page will know that we come down strongly on the side of private property as a foundational American right that helps keep government in its proper place. <br> But there is an exception worth noting in which the prerogatives of private property owners should yield a little to the needs of the public. Universal access to the shore dates back to ancient Roman law and, later, English common law. The “public trust doctrine” grants the water and the land covered by the high-tide level. Anything above that line can be claimed by private property owners.

Lake Michigan is one of the state’s greatest natural resources, and the public should not be denied the access that enables the use of it.